The `global commons’ paper by Mike Halewood is an interesting account of the many problems developing as a result of the ITPGR. As a part of this account Mike notes: `apparent weaknesses in the architecture of the ITPGRFA’s multilateral system of access and benefit sharing.’ (p. 306).
In particular, Mike is concerned with the distribution of samples by the CGIAR under a 2007 policy whereby: `… at their own initiative, the CGIAR centres confirmed that they will also provide facilitated access under the same conditions to non-ITPGRFA member states, on the basis that nothing in their ITPGRFA legal agreements prevents them from doing so.’ Mike then argues (p. 299): `This practice is offensive to a number of ITPGRFA state parties, some of whom have refused to place materials in collections that have the policy of distributing PGRFA to non-parties’ and that: `allowing non-Parties access to PGRFA pooled under the multilateral system is creating disincentives for them to join the Treaty with the result that their PGRFA is not being included in the common pool’.
Mike then queries the motivations for the CGIAR centres: `distributing multilateral system PGRFA to non-ITPGRFA members.’ (footnote 8). Mike identifies five motivations and then casts doubt on the value of these motivations – specifically: `Are these factors more important than the advantages of invigorating the multilateral system?’
Mike then suggests a change in CGIAR policy: `International organizations like the CGIAR centres, and national genebanks and other organizations within ITPGRFA member states, could be encouraged to discontinue their policies of making materials available to recipients in states that are not Treaty members.’ (p. 304)
This line of reasoning – that the Treaty is threatened by CGIAR actions – is, very simply, not tenable. An obvious candidate for blame is the ITPGRFA benefit sharing mechanism, rather than the CGIAR policies. As the benefit flow to sample-contributing countries is meagre, such countries withhold their samples from the Treaty. The same countries are massively withholding national samples from the Svalbard seed store and this store is a Norwegian Government store – nothing whatever to do with the CGIAR. The major problem is not the `red herring argument’ of the CGIAR supplying non-members with samples but Treaty members themselves not distributing samples.
Mike implies that the 2007 CGIAR policy `at their own initiative’ on sample distribution to non-ITPGRFA members was new. This is certainly not so: it was a statement of a 50-year policy, long predating the Treaty, of distributing samples to anyone who could use them. It was a policy widely known and implemented across the CG genebanks. This policy should have been known and understood by the agencies in Rome formulating the Treaty; it should have been explained to countries during the Treaty negotiations; and it certainly should have been built into the Treaty as non-negotiable. It seems that the CGIAR is being set up as a scapegoat for the failings of the ITPGRFA.
To suggest now that the Treaty is failing because of the CGIAR generous policy on sample distribution – and that this policy must be changed as a means of: `invigorating the multinational system’ (Mike’s footnote 8) – avoids the fact that the Treaty was badly, indeed deceptively, drafted in Rome with a miniscule involvement of CGIAR staff actually managing large collections.
Fortunately, there is no chance whatever of the CGIAR institutes accepting Mike’s suggestion to refuse samples to their national partners. For example, Mexico, not yet a Treaty member, has contributed over 100,000 samples to CGIAR genebanks: this is the largest contribution of any nation; it is heroic. How can the CGIAR deny Mexico access to samples? Further, China, not yet a Treaty member, has the largest concentration of rice scientists in the world. How can IRRI deny these scientists access to rice germplasm? Doing so would pose a threat to global food security, rice being the most important food of most of the world’s poor: this is unthinkable.
Importantly, if the terms of the Treaty are changed to prevent CGIAR genebanks continuing with their long-standing sample distribution policy, then the CGIAR has every reason to step away from the failingTreaty. If the Treaty stoops to this level it deserves to be scrapped. There are viable alternatives to the Treaty that would avoid its totalitarian leanings and also better share benefits with the countries of origin of samples.

Well said, Dave. Since I read the paper, and particularly footnote #8 (which I actually found offensive in some respects) I have struggled how to respond without sounding ‘defensive’ because of my CGIAR and genebank/genetic resources use background. You have eloquently expressed all my concerns and I thank you for that. ‘No conservation without use’! It seems some are little concerned that genetic resources should be used for the benefit of society – and frankly if the resources can best be used by a researcher in a non-Treaty country, so be it, and thank goodness for their efforts.

I would like to make two points regarding the CGIAR-held collections and the Treaty, and particularly Mike’s comment about Footnote 8 in the Halewood paper. First, to set the context, let’s recognize that Article 15 of the Treaty, which deals with these collections, is found in a section of the Treaty described as “Supporting Components,” as opposed to the section on the Multilateral System itself. That’s a signal.

Second, and much more importantly, the opening sentence of Article 15 clearly references the “In Trust” agreements that the CGIAR Centers made with FAO in 1994 long before the finalization of the Treaty. Article 15.1 says that the Contracting Parties recognize the importance to the Treaty of these collections of PGRFA “held in trust” by the IARCs. This is a direct quote – not accidental or meaningless language! This language references both a history and a formal understanding of that history by Contracting Parties themselves (and the CGIAR Centers and FAO), as Treaty negotiators well understood.

If we then look back to the “In Trust” agreements to see what this Treaty language might mean, we find that those agreements acknowledged that the germplasm accessions held by the CGIAR “have been donated or collected on the understanding that these accessions will remain freely available and that they will be conserved and used in research on behalf of the international community…” We should not try to rewrite history. To my way of thinking, the international community referenced in the In Trust Agreements is the entire community. It is not the community minus Country X or Country Y; in other words it is not the international community minus those that have not yet ratified the Treaty– or might never ratify it. The Treaty now has some 130 Parties. In its early days it had far fewer. Back then, should the CG Centers have restricted access to all but the first 30 countries to ratify or the first 40 or whatever, when Treaty “membership” consisted of only a small number of countries? I don’t think so. Neither do I think that access can be denied now. And I believe this point was understood and acknowledged by Treaty negotiators and captured in the language of Article 15 with its reference to the in-trust nature of the collections. It’s why this particular language is in Article 15; again, I stress, the formulation was not accidental. Negotiators understood that the CG would not be denying access to the collections, because of the unique history of those collections as explained in the In Trust Agreements, and referred to in Article 15. It’s the history and the availability that defines what it means to be “in trust” and it is why this term is used in Article 15.

This issue involves a matter of high principle. The collections were constituted under a certain understanding – that they were acquired, conserved and distributed for the international community. I do not believe it is consistent with the Treaty or with history to argue that a subset of the international community (Parties) can decide to restrict access to another subset (non-Parties). The height of absurdity would be to restrict access to the country that had provided the accession in the first instance.

While it is obvious and accepted the Treaty supersedes the In Trust Agreements in general, we must note this incidence in which the Treaty “brings along” part of those agreements. This leaves open the question of whether the Governing Body might properly mandate different terms of access for Parties and non-Parties. About that, I am just not sure. But it seems clear to me that access to non-Parties cannot be denied, and that if the terms of access are to be different they should not be so different as to restrict access materially.

Cary: Thanks for your detailed comments, with which I fully agree. I dug back into my files of a decade ago – a time when I was trying (and failing) to improve the Treaty for the CGIAR and national partners.
I wrote the following to Meryl Williams (I think she was chair of the DGs Committee at the time) on the problem of discrimination against non-ratifiers. The FAO text is from a meeting in October 2002 [CGRFA/MIC-1/02/8]. Art 2 subsequently became Art 15 of the Treaty.
“The need for MTAs on returning duplicate sample to country of origin. [I argue that] Centres must continue to return duplicate samples without an MTA to the country that originally provided samples. Text to confirm this long-standing practice was inserted at my insistence in the original FAO-Centre Agreement (Art 10) of 1994. This critical right of repatriation has now almost gone, despite concerns over the Treaty text being raised by Centres at the IRRI meeting on the Treaty in February 2002. This crucial omission is repeated twice in the new Draft Agreement. Firstly, under Article 2 a), on the all-important Annex I crops, countries of origin have to accept a restrictive MTA to obtain duplicates of their deposited samples back. Under Art. 2 b ii), for non-Annex I crops, only contracting parties – at present a minority – do not have to accept a restrictive MTA to repatriate duplicates from Centre collections. This is massively discriminatory. The result will damage Centre credibility. For example, India as a ratifier will have to accept an MTA to obtain Indian sorghum samples from ICRISAT, but not groundnut samples; Mexico, as a non-ratifier, will have to accept MTAs on anything whatever from the Centres, including all samples of Mexican origin.”

As this became Art 15 of the Treaty, there remains a complexity between Annex 1 and non-Annex 1 and also between contracting and non-contracting partners. (And also between my original terminology of `the country that provided the sample to the CG’ and `the country where the samples were collected from in-situ conditions’). So Art 15 does allow some discrimination between contracting and non-contracting countries – although nowhere near as serious as that now suggested by Mike Halewood.

Mike Jackson was at the IRRI 2002 meeting and might add his memories of the meeting.

Dave, the issue of restoration was addressed during GB4 in 2011. The ad hoc TAC on the SMTA opined that PGRFA can be restored without SMTA, either to the Provider, or to the competent authority of the territory where they were collected, or to the legal or natural person that placed them in the MLS. (I think only the second of these would be considered a repatriation, so they use the term restoration instead). Their reasoning was that restoration can be considered to be not an act of facilitated access, so does not require the SMTA. See pp15-16 of their report presented to GB4 at http://www.planttreaty.org/sites/default/files/gb4i08e.pdf . Note that this reasoning applies to all crops, all countries – so no discrimination.

Unfortunately it wasn’t adopted by the GB because there were serious issues with other recommendations from the ad hoc TAC; but nor was it rejected. The GB “Notes the opinions and advice … as helpful guidance” (see http://www.planttreaty.org/sites/default/files/gb4i08e.pdf , resolution 4/2011, para 23). We were told that we can, even should, act on this suggestion. So we do. One curious omission if we follow their definition of restoration: we can’t restore a breeding line / variety to its breeder without SMTA unless the breeder is also the one who provided the material or put it in the MLS.

To be honest, when I read through your comments, I don’t see that we are so far apart. I don’t actually deny the issues you raise as justifications for the centres to continue their policy of making materials available to non-Parties. Indeed, I have included almost all of them in footnote 8 … precisely because they deserve to be considered. In his first comment, David unfairly suggests that I ‘cast doubt on’ those motivations. That is not at all the case. What I do say is that it is necessary to have more information to assess costs and benefits involved, and that for the purposes of the paper “[i]t will have to suffice for now to point out the tensions involved.”

The paper is an attempt to bring together 40 years of scholarship about ‘commons’, and the evolution of collaborative practices and supportive policies to conserve, share and manage crop genetic resource (over pretty much the same period of time). It was inspired by the idea that the frameworks for institutional analysis that have been developed by commons scholars could help to diagnose some weaknesses/challenges which the multilateral system has been experiencing. The list of options for possible reforms on pages 304-305 are explicitly based on the logic of the commons-based institutional analysis, which emphasizes the importance of reciprocity, shared responsibilities, proportionality of costs and benefits to resource users/managers and minimizing opportunities for free-riding. From that perspective, it is fairly obvious to highlight that providing facilitated access to non-parties to a large proportion of the materials in the multilateral system, without requiring anything in return, does not capitalize on potential incentives for their deciding to become members. (BTW, I am not the first to raise the issue; I provide reference to others who have. And I have heard if from NARS reps.) Nonetheless, where I felt it was particularly important to take into consideration issues that didn’t come into focus through the commons-informed institutional analysis – as in the case of justifications for the centres’ policies regarding non-parties – I pointed them out in a footnote. Perhaps as Jeremy suggests, this issue would not have attracted so much attention if I had incorporated the text of footnote 8 into the main body of the paper as part of the discussion of centres’ policy regarding non-parties.

David gives the impression that the paper is primarily focused on the CGIAR, and that it suggests the CGIAR is ‘the major problem’ or a ‘scapegoat’. I strongly resist that characterization of the paper. Very little of the text overall is focused on the CGIAR, and only one of areas of possible reform mentions the CGIAR. The paper emphasizes the importance of the CGIAR’s role under the Treaty, as I have done in numerous other papers. Most of the paper focusses on the ‘goods status’ of PGRFA, the architecture of the multilateral system per se – e.g., the benefit sharing formula, natural and legal person’s rights of facilitated access, etc — and how various elements of that architecture have created incentives (or not) for different actors’ to participate as either providers or recipients. I also wish to dissociate myself from David’s comments regarding the Treaty generally. I am convinced that the ITPGRFA is an extremely important, timely, and critical development. That said, there appear to be ways to make it work better, and that is what the paper attempts to address.

I note, and agree with, Ruaraidh’s comment about repatriation. However, repatriation is not so directly relevant to the issue at hand, which is more about getting access to materials originally collected from other countries, through the MLS.

Michael: Thanks. There are many issues here and nothing short of a paper-length comment could address even most of them. To my mind, one of the big problems with the Treaty is not how many countries are members, but how the current members are avoiding their obligations to distribute samples.
You argue: “… it is fairly obvious to highlight that providing facilitated access to non-parties to a large proportion of the materials in the multilateral system, without requiring anything in return, does not capitalize on potential incentives for their deciding to become members.”
But the absolute number of members is less important compared to what members actually distribute: this is not a lot at present from most developing countries who could be the expected source of new diversity. Also I query your ` without requiring anything in return’. In fact most non-members of the Treaty have contributed substantial numbers of samples to the CGIAR and developed country collections: for example, 100,000+ from Mexico and probably up to 200,000 from the USDA in the early years of the Centres. Is there any country not a Treaty member who has contributed nothing to the CGIAR collections? This is not free-loading, but a historical and effective exchange system based on reciprocity (with the added value of crop improvement).
Further, it is surely not by accident that the Treaty does not discriminate against non-members, as all countries benefit from samples from other countries and, importantly, value-adding research in other non-member countries including the USA and China. Two key elements of the Green Revolution – short straw rice and also wheat, came from USDA collections from East Asia and were enhanced by US and CIMMYT research.
I can understand countries’ reluctance to distribute samples when for decades they have been told a pack on nonsense by NGOs. For example (late 1980s): “ Plant Breeders from industrial countries must no longer be given free access to native germplasm in Third World countries to develop new commercial varieties that are then sold back to the Third World at considerable profit.” I suggest that this malign activism is the basis for the refusal of Treaty members from the `Third World’ playing `dog-in-the-manger with their genetic resources.
Yet for most crops and most countries this activist view is wrong. `Native germplasm’ is not what most countries rely on. The reasons are wholly ecological and `natural’ , were suggested by De Candolle in 1886, worked out in detail by Purseglove in 1968, Jennings and Cock in 1977, Kloppenburg and Kleinmann in 1986, and myself in 1988. Note that the 1977 and 1988 papers were from CIAT. In fact, most countries rely for most of their crop production on crops introduced from other continents, with the probable explanation being that trans-oceanic movement allows crops to escape from yield-reducing pests and disease.
This ecological fact could and should have been a major plank of the Treaty and the Centres’ involvement in the Treaty: instead the CIAT and other research was ignored in Rome and the huge commercial value of crop introduction became a minor component of `interdependence’.
The vast trade in soybean from the Americas to Asia illustrates that the Treaty has missed the boat on benefit-sharing. The crop is outwith the Treaty; the main producer, the USA and the main importer, China, are outwith the Treaty. China, having provided soybean germplasm to the US (later supplied to Brazil) now has the benefit of importing soybean from competing producers and exporters in the Americas keeping the global price of soybeans down to the advantage of pork consumers in China. Chinese consumers benefit (I estimate to the value of over $10billion a year) and North and South American farmers benefit, all market-driven and all without the Treaty.
This leads to a point made by Mike Jackson. We are not just talking of germplasm exchange but of crop improvement. The free landrace germplasm distribution by CG Centres allows improvement and trials in other countries with consequent spill-overs. However, the crop improvement research by Centres costs more and is worth much more in terms of improved crop production than landrace distribution under the Treaty.
This crop improvement, to the benefit of all developing countries, will eventually be jeopardized by the current failures of the Treaty. If the Treaty can be repaired, then well and good: however, if there are any doubts – and I have doubts – then non-Treaty initiatives, based on the soybean model, may well be needed if countries continue to sit on national germplasm. I am now acting on one such initiative by preparing proposals on the `China-Americas supply, research, production, and export back to China of soybean’ model to other crops and regions to demonstrate the high mutual benefits of crop introduction.

Dave Wood: “can understand countries’ reluctance to distribute samples when for decades they have been told a pack of nonsense by NGOs … I suggest that this malign activism is the basis for the refusal of Treaty members from the `Third World’ playing `dog-in-the-manger with their genetic resources.”

Very interesting. Are any of these NGOs going to come forward and defend their actions against such heavy charges …?

I argued in December 2013: “As the benefit flow to sample-contributing countries is meagre, such countries withhold their samples from the Treaty.” I got this wrong. The benefit-sharing flow from distributing samples with an SMTA is zero.
This is from the Treaty `THIRD MEETING OF THE AD HOC OPEN-ENDED WORKING GROUP TO ENHANCE THE FUNCTIONING OF THE MULTILATERAL SYSTEM’ Brasilia, June, 2015 [IT/OWG-EFMLS-3/15/Report]: “To date, there has been no SMTA-based payment to the Benefit-sharing Fund. A failure to overcome the structural problems in the current working of the Multilateral System will put the future of the Treaty as a whole at risk.”
Interestingly, Mike (Halewood) used similar terminology in his `global commons’ paper, with `weaknesses in the architecture’ instead of `structural problems’. If a building has structural problems or weakness with the architecture (=poor design) one solution is to knock it down. As this is not going to happen with the Treaty there may be some ugly buttresses built to shore it up.
As this working group will reconvene immediately before the Treaty Governing Body 6th Meeting (Rome, 5th October, 2015) it would be interested to get some feedback.

Featured Comment May 23, 2016

Åsmund Bjørnstad is not at all daunted by the doubters on the need to reform patents:

First, I entirely agree that “global legal harmonization” is a daunting task… [But] [g]iven that four countries has passed breeding exceptions for patents, that Switzerland adds compulsory licensing to this, and the emergence of private licensing consortia, changes need not be dramatic.